PETS ARE PROPERTY IN FAMILY LAW
THE DOG
- In his affidavit filed 1 February 2018 which ran to 52 paragraphs, the applicant devoted 22 paragraphs to the issue of B. He referred to this dog as his, having “first met” B in 2010 which was prior to his relationship with the respondent. He then went on to say how the dog was cared for. The respondent does not agree with the applicant. She also devoted 15 paragraphs to the same issue saying that she was concerned that the applicant was seeking the dog’s return to “further isolate, intimidate and punish” her for pursuing a property settlement and spousal maintenance. She devoted much of the affidavit to how the dog was currently being housed. She met B for the first time about a year after the applicant did.
- The Family Law Act 1975 (Cth) (“the Act”) makes no reference to pets. It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alteration of a property interest on an interim basis. Thus, the interest must be determined by reference to s 90SM and s 90SF of the Act.
- The application in relation to the return of the dog was treated by the applicant as an application for interim property settlement. The principles to be applied were set out by the Full Court in Strahan and Strahan (interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466. The first of two steps is the court must consider whether there is jurisdiction to make the orders sought. Both parties agree that the dog is property. The second step requires a consideration of the relevant factors under s 90SM of the Act.
- In Strahan, Boland and O’Ryan JJ, articulated the test at [132] as follows:
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h)of the Act to make an interim property order, the “overarching consideration” is the interest of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
- A fair reading of the respective positions of the parties as set out in their affidavits would not indicate that there is some overarching consideration here warranting the intervention of the court on an interim basis, the intervention of the court. Although the reference in the quote is to s 79 of the Act, the same provision is found in s 90SM. In Strahan, as Thackray J observed (at [226]) the court should approach an application by first identifying the circumstances that make it appropriate to give consideration to the exercise of its power to make an interim order as distinct from a final order. As his Honour observed, the conditions upon which the power is to be exercised, are governed only by the obligation to make an order that is appropriate in the circumstances and to ensure that that order is just and equitable.
- It is clear from reading the affidavits of the parties that there is much angst about whether this dog is being treated properly. The various claims for ownership by reference to registration, or undertaking the attendances on a vet, are hardly matters that would indicate it is appropriate in the circumstances to make an order here. Whilst one might sympathise with the applicant who asserts that he has an “emotional attachment” to the dog, so too, the respondent asserts a similar feeling but she desires the issue to be determined as part of an overall property settlement. Indeed, it will be obvious that there are significant factual disputes at play as to who undertook what tasks in relation to this dog.
- It is also significant to note in determining whether it is appropriate to make an order here, the dog has been in the possession of the respondent for some time. There appears no logical reason why it is urgent for the court to intervene to protect property.
- In the circumstances, I could not be satisfied that it is appropriate to exercise the relevant power.
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Queensland/Sunshine Coast/Brisbane/Gold Coast
